Cable Car Trailers

National Labor Relations Board - Board Decisions

Oct 15, 1997

324 N.L.R.B. 732 (N.L.R.B. 1997)

732
324 NLRB No. 112
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Charging Party has excepted to some of the judge’s credibil-
ity findings. The Board’s established policy is not to overrule an ad-
ministrative law judge’s credibility resolutions unless the clear pre-
ponderance of all the relevant evidence convinces us that they are
incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd.
188 F.2d 362 (3d Cir. 1951). We have carefully examined the record
and find no basis for reversing the findings.
2 In adopting the judge’s recommendation to dismiss the surveil-
lance allegation, we rely on his finding that handbillers had been ob-
served obstructing access to the Respondent’s ticket window and
boarding its tour cars to approach customers who had already bought
tickets, and that the Respondent did not begin its surveillance until
after it had received reports of such incidents. See Concord Metal,
Inc., 295 NLRB 912, 921 (1989) (finding an employer’s pho-
tographing of picket line to be lawful where pickets had blocked an
entrance and employer sought to preserve evidence for possible legal
action). We also find it unnecessary to reach the issue of whether
the various types of conduct described in his decision were unpro-
tected or unlawful.
1 Specifically, the allegation (complaint par. 12) reads: ‘‘On var-
ious dates in July, August and September 1993, Respondent, by Hoa
Van and Ty Van, by Respondent’s pier 41 facility, engaged in sur-
veillance of Respondent’s employees’ union activities, by
photographing those activities.’’
2 All dates in this supplemental decision refer to the 1993 calendar
year. The boycott and handbilling at pier 41 commenced on July 2.
Cable Car Advertisers, Inc. d/b/a Cable Car Char-
ters and Freight Checkers, Clerical Employees
& Helpers Local 856, International Brother-
hood of Teamsters, AFL–CIO and Sheila Lam-
bert. Cases 20–CA–25377 and 20–CA–25789
October 15, 1997
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS FOX AND
HIGGINS
On June 24, 1997, Administrative Law Judge Wil-
liam L. Schmidt issued the attached supplemental deci-
sion. The Charging Party filed exceptions and a sup-
porting brief.
The National Labor Relations Board has considered
the supplemental decision and the record in light of the
exceptions and brief and has decided to affirm the
judge’s rulings, findings,1 and conclusions and to
adopt the recommended Order.2
ORDER
The recommended Order of the administrative law
judge is adopted and the surveillance allegation in
complaint paragraph 12 is dismissed.
Eugene Tom and Richard Fiol, Esqs., for the General Coun-
sel.
Michael P. Merrill, Esq. (Merrill, Arnone & Handelman), of
Santa Rosa, California, and Messrs. Arnold Gridley, Rob-
ert Gridley, and Robert Sullivan, of San Francisco, Cali-
fornia, for the Respondent.
David A. Rosenfeld, Esq. and Mr. Jonathan Palewicz, of San
Francisco, California, for the Charging Party, Local 856.
Mr. Michael Buckey, of San Francisco, California, for the
Charging Party, Sheila Lambert.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
WILLIAM L. SCHMIDT, Administrative Law Judge. On No-
vember 21, 1996, the Board issued its decision in Cable Car
Charters, 322 NLRB 554 (1996). In that decision, the Board
declined to adopt my recommendation to dismiss the com-
plaint’s surveillance allegations. Instead, the Board severed
the surveillance allegation and remanded it to me ‘‘to make
the necessary credibility resolutions.’’ I then invited the par-
ties to brief the remanded matter. General Counsel, Respond-
ent and Teamsters Local 856 each submitted a brief. After
again carefully considering the record and the parties briefs
on this limited issue, I now make the following:
SUPPLEMENTARY FINDINGS OF FACT
I. THE SCOPE OF THE REMAND AND THE ARGUMENT
The Board found that ‘‘[i]t is undisputed that the Respond-
ent photographed and videotaped employees engaged in
handbilling on behalf of the Union and that it maintained a
written record of names and dates that employees engaged in
handbilling.’’ Furthermore, the Board noted ‘‘[t]he Respond-
ent contends that its surveillance was necessitated by em-
ployee misconduct.’’ In its remand order, the Board directed
me ‘‘to make credibility determinations regarding when the
surveillance began, whether employee misconduct occurred
and, if so, when the misconduct took place, and whether Re-
spondent was aware of the misconduct when it ordered the
surveillance.’’ The complaint allegation at issue pertains to
Respondent’s surveillance of employees by photographing
their boycott activities at Respondent’s pier 41 facility in San
Francisco.1
The General Counsel now asserts that ‘‘the record sup-
ports a finding that Respondent’s photographing and
videotaping took place from the very inception of the
handbilling, July 2, through its conclusion in December.’’2 In
support of this assertion, General Counsel claims that the tes-
timony of three employees—Randy Morrison, Kohle Gleffe,
and Fred McKenzie—mutually corroborate one another and
establish that the photographing and videotaping commenced
in early July. In addition, the General Counsel argues that
Respondent’s failure to either admit or deny that it photo-
graphed and videotaped employees in July warrants an ad-
verse inference that such activity, in fact, occurred in July.
That inference, taken together with the testimony of Morri-
son, Gleffe, and McKenzie, merits the conclusion, the Gen-
eral Counsel asserts, that the record ‘‘amply supports a find-
ing that the photographic and videotaping surveillance began
in July.’’ As for misconduct by the handbillers, the General
Counsel argues, in effect, that none occurred but even if
some misconduct did occur, it did not happen until after July
or August. For these reasons, the General Counsel argues
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733CABLE CAR CHARTERS
3 Originally, I received this videotape exhibit for the limited pur-
pose of demonstrating the nature of certain claimed misconduct. In
view of its general depiction of the scene at pier 41, I now receive
that exhibit without qualification.
4 By the time of the hearing, the Port Authority had awarded this
pier 41 vendor license to a competitor of Respondent.
that the photographic and video surveillance at the outset was
unlawful.
Local 856 argues that ‘‘there was no employee mis-
conduct’’ and, hence, no surveillance was justified. Accord-
ingly, Local 856 urges that I find the Respondent’s efforts
to maintain a written and photographic record of activities at
pier 41 unlawful.
Respondent now contends that ‘‘the initial determination
that the close proximity of the employees engaging in con-
certed activities with other employees performing services
for the company . . . was an ample factual finding to sup-
port the legal conclusion that [it] had reason to believe that
conflict would arise’’ and, therefore, its efforts to keep a
written and photographic record was permissible under the
language in F. W. Woolworth Co., 310 NLRB 1197 (1993).
In addition, Respondent argues that Michael Van’s testimony
establishes the boycotters blocked customer access to its tick-
et window at the pier 41 ticket car throughout the month of
July, and that this information was communicated to Re-
spondent’s management. In addition, based on the testimony
of employee Bill Mar, Respondent claims that certain boy-
cotters verbally abused its customers at Pier 41 throughout
the summer of 1993. Finally, Respondent argues that it main-
tained its written and photographic record on ‘‘advice of
counsel to be used in the pursuit of later injunctive relief.’’
Accordingly, based on the Board’s decision in Concord
Metal, Inc., 295 NLRB 912, 921 (1989), Respondent believes
that its written and visual record concerning the boycotters
conduct at pier 41 was justified.
II. THE SETTING OF THE BOYCOTT ACTIVITIES
Originally, I concluded, in effect, that it was unnecessary
to determine precisely when Respondent commenced its writ-
ten and pictorial record keeping vis-a-vis misconduct by the
union’s leafleters. Because of ‘‘the handbillers’ and the ticket
sellers’ access to potential customers occurred in the same
restricted space at the same time’’ I concluded that Respond-
ent’s effort to maintain a written and pictorial record was
justified.
Respondent’s Exhibit 28—the only one of the disputed
videotapes in evidence—amply displays the physical setup of
Respondent’s pier 41 operation and the proximity of the em-
ployees engaged in boycott activities on behalf of the Union,
the Respondent’s employees engaged in their normal work
activities at that location and the potential customers passing
through that area.3 As indicated in my original decision, Re-
spondent, in effect, obtained a license from the San Francisco
Port Authority as a vendor at pier 41 to solicit tourists for
sightseeing trips on its faux cable cars.4
The pier 41 area allocated to Respondent amounted to
slightly over 90 feet of curb space adjacent to a sidewalk
which is about eight feet wide. The sidewalk is bounded on
the side opposite the curb by a low fence constructed of
wooden pier piling sections connected with heavy anchor
chain. The sidewalk in this area is one of the principal routes
of walking traffic in the Fisherman’s Wharf area which at-
tracts considerable tourist traffic. With the cable cars on one
side and the fence on the other, the sidewalk through the
area involved amounted to what one witness called a ‘‘cor-
ridor.’’ Respondent’s pier 41 business efforts occurred pri-
marily along this corridor.
In pursuit of this business, Respondent outfitted one of its
cable cars as a ticket car. Each day that car would be driven
from its car barn to pier 41 where it would remain parked
at curbside throughout the day’s operation. As a rule, Re-
spondent posted one employee in the ticket car to conduct
business with customers who approached the ticket window
to purchase tour tickets. In addition, one or more roving tick-
et sellers walked along the adjacent sidewalk soliciting tour
customers. Two of Respondent’s regular cable cars parked
behind the ticket car for use on the tours. When enough cus-
tomers purchased tour tickets, the full car would be dis-
patched and another car would be called to take its place.
As depicted by the videotape in evidence, Respondent in
effect conducted a retail operation at pier 41 entirely in the
public sphere as opposed to the usual retail operation typi-
cally conducted within the confines of a leased or owned
space. In essence, everyone from the general public to the
boycotters would be entitled to access to the general area of
Respondent’s pier 41 operation. For purposes of this deci-
sion, however, I have presumed and I find that only on-duty
employees and members of the public licensed by Respond-
ent through the purchase of a ticket would be entitled to ac-
tually board Respondent’s cable cars.
III. BOYCOTT MISCONDUCT AND
RESPONDENT’S KNOWLEDGE
A. The Pertinent Evidence
Michael Van regularly worked as the ticket car ticket sell-
er throughout the period of the boycott activities at pier 41.
As Respondent noted in its remand brief, Michael Van
claimed that some of the leafleters blocked the customers’
access to the ticket window. In addition, Michael Van testi-
fied concerning ugly racial references which two of the boy-
cotters made about him to customers at the ticket window.
Specifically, Michael Van testified as follows:
Q. If you have a specific recollection of something
that was said to you, I’d like to hear that.
A. Yeah. There was one time about a week before
the—the week after the leaflet thing down there—
Q. Was this the week after it started?
A. Yeah. And Randy Morrison told—there was this
black gentleman walking to my window, and he said
that, ‘‘You won’t want to buy a ticket from him be-
cause he’s a racist. He don’t like black people.’’
Q. And what did the customer do?
A. The customer went on the tour anyway.
Q. Do you have any other recollections where you
can remember specific things that were said to a cus-
tomer in front of you, or that were said to you by any
of the individuals that you knew in the company that
you could identify?
A. There was Will Segen. He told a customer, ‘‘You
won’t want to buy your ticket from this guy, right
here.’’ And he would say—talk about the Asian, say
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734 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 Michael Van is the nephew of Respondent’s barn supervisors
Hoa and Ty Van. At the time of the hearing, he lived with Hoa and
Ty. I presume that he too is a Vietnamese immigrant or the son of
recent immigrants. Although Michael Van’s command of the English
language was far superior to that of his aunt and uncle, his syntax
was not on a par with most native speakers. For this reason, I am
not disturbed by counsel’s use of a limited number of leading ques-
tion during his direct examination of Michael Van. In my original
decision, I found John Mozol to be a nonsupervisory barn employee
who was terminated prior to the commencement of the boycott ac-
tivities on July 2. Therefore, I conclude that Michael Van’s recollec-
tion about informing Mozol of these incidents is simply mistaken.
that their eyes are small and when I stare out, he said,
‘‘Are your eyes open?’’
Q. Is this what he said to you?
A. Yeah.
Q. And where were you when Mr. Segen said this
to you?
A. I was in the ticket booth.
Q. And you were selling tickets, attempting to sell
tickets to customers at that time?
A. Yes, sir.
Q. Did the individuals that you described in any way
block or attempt to block customers from getting to
your ticket booth?
A. Before the injunction was put into place, there
was three of—about three of them around the ticket
booth, and some—
Q. And when you say around the ticket booth, tell
us how they were around the ticket booth.
A. Like they were right next to the window which
is about one feet [sic] away, and the other one was
right in front of me.
Q. And what were they doing?
A. They were trying to stop customers from coming
to the window.
Q. How would they do that?
A. They will either—they will stop, pass out the
pamphlet, and tell them that to go down to another
company.
Q. And were they standing in front of the booth so
the customer couldn’t get to the window?
A. Yes, sir.
Q. And do you remember—could you identify who
these individuals were that were doing this, or any of
them?
A. Yes, sir.
Q. And who were those individuals that you saw
doing that particular activity?
A. It was Will Segen, Dan Callahan, Randy Morri-
son, and there was some other people that didn’t work
with this company.
Q. Other people that worked with the company or
didn’t work with the company?
A. Didn’t work with the company.
Brendan Travers, a company driver, described activities by
the individuals engaged in the pier 41 boycott activities.
Thus, he testified:
Q. And if you can remember, you know, specific in-
cidents and specific individual’s conduct, you know,
we’d like to hear that.
A. Well, it—as I said, it started off pretty gentle, but
then it became people were obstructed getting on the
cable cars.
Q. How did that happen, and what would somebody
do to obstruct an individual from getting on to the cable
car?
A. The person that was selling the tickets, in the
process of selling the tickets, some of the picketers
would get in behind them, or very close, and obstruct
it, or try to, try and say something as the process was
going on.
Q. Would they attempt—are you saying they would
attempt to get in between the people who was selling
the tickets and the customer?
A. Yes.
Q. And they’d physically sort of force themselves in
that position?
A. I’m not going to say they physically did it, but
they did it in such a way that it made the people that
were buying the tickets aware there was something
going on, and it made it uncomfortable for them, and
it was certainly—I’m not going to say they—nobody
pushed anyone or did anything like that, but it made it
very uncomfortable for the people and they were aware
what was going on.
. . . .
Q. Did it appear from time to time that the—the
ticketers [sic] were actually, you know, trying to pre-
vent people physically from getting onto the cars?
A. I haven’t seen them actually physically try to stop
anyone. It was just a matter of when they’d be getting
the tickets, the ticket seller would be trying to sell it
to them. They’d be kind of hovering around, maybe
moving in front, or making them aware that they were
there, and even saying things over the voice of the tick-
et seller in such a way they’d hear it. It’s very close,
and blocking the cable cars sometimes.
On cross-examination, Michael Van testified that these in-
cidents started in July. He further testified that he informed
Hoa and Ty Van, Christine Bennett, and John Mozol about
these incidents.5 Travers testified that the leafleters activities
at pier 41 began peacefully but after a couple of days the
conduct changed.
Randy Morrison flatly denied that he made the racial slur
attributed to him by Michael Van. Will Segen denied that he
made an ‘‘anti-asian’’ remark to Michael Van but acknowl-
edged that he had told Van that he should open his eyes or
that his eyes were not open. Segen claims that he made such
remarks to Michael Van on one occasion when it appeared
as though Van was or had been sleeping at the ticket car
window.
Arnold Gridley claimed that he received similar reports
from the car barn about the conduct of the leafleters over the
July 4th weekend. He testified:
The car barn called me and said that they were block-
ing the ticket sales. That the ticket sellers could not sell
any tickets, the people that were trying to board the car
were interfered with, and the picketers were screaming
and hollering and telling all the people that the cars
were unsafe and that they should not get on these cable
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735CABLE CAR CHARTERS
6 Certain observations are in order concerning the following testi-
mony by Arnold Gridley. First, I presume the transcript reference to
‘‘Mr. Ongisto’’ actually refers to former San Francisco Police Chief
Hongisto who now operates a private security firm. There is general
agreement that Respondent posted security guards at pier 41 for a
period of time. Second, I find it very likely that Gridley confused
reports purportedly received from Philip Nolan and Debra Daniels
over that July 4th weekend with reports at a later date. Neither of
those two individuals were employed by Respondent at that time.
Third, in my original decision I characterized the ‘‘storm trooper’’
reference in this portion of Gridley’s testimony as an obvious exag-
geration. I remain of that view even though, for reasons explained
below, I credit some portions of this section of Gridley’s testimony
as it is consistent with other witnesses I regard as reliable, including
Michael Van, Steven Vogel, Brendan Travers, and Henry Schaeffer.
cars, that they should go down to Pier 39 and board
their cable cars down there. They even said that they’d
give them the difference in the money to go down
there. But on the overall picture police had to be called.
It was really something like—I just—it’s hard to por-
tray how boisterous, how loud the screaming, and peo-
ple stopping the people from walking on the sidewalk.
The people were afraid of the screams and hollering
and the bad language that was being used there, and it
interfered about, I would say, 60 percent of our busi-
ness, or 70 percent, on the 4th of July there—was tak-
ing place because of all of the strong activity that was
going on there.
Arnold Gridley claims that he went to pier 41 when he re-
ceived this report and observed this activity first hand. On
cross-exmaination, he provided this further detail:6
Q. I see. Now, you say that you went down to Pier
41 on the July 4th weekend and you observed various
things taking place. Did you yourself observe the ticket
cars being blocked on that occasion?
A. Yes, I did.
Q. How many times did that happen on that occasion
that you observed this activity at Pier 41 on the July
4th weekend? Was it all day or—
A. I wasn’t there all day. I was there for two or three
hours, and then I came back and I was there again. And
I was on the radio all the time. They were keeping me
informed of everything that was going on.
Q. Who was it who was keeping you informed on
the radio?
A. Two or three different people at that time. Ms.
Hoa happened to be one, her husband another one—
Q. That’s Ty Van?
A.—then there was some other one down there that
was there at the time. And they were all keeping me
informed of what was happening.
Q. I see. I’m sorry, I didn’t quite hear an answer
from you, Mr. Gridley. Was Ty Van one of these peo-
ple who was keeping you informed, Hoa Van’s hus-
band?
A. That’s correct.
Q. All right. And the third person, do you recall now
who that person was?
A. Patrick Nolan was a person that I believe gave us
a call. Another lady in my office, Debra Daniels, I be-
lieve, was there at the time and was helping out in the
situation.
Q. I see. And you say that you actually saw on this
occasion, the July 4th weekend, passengers or potential
customers actually being interfered with?
A. That is correct.
Q. You saw this yourself?
A. I did.
Q. Plain as day?
A. That is correct.
Q. How many times did that happen, many times or
just one time?
A. This happened on many occasions.
Q. Many occasions.
A. Like an ongoing basis for quite awhile. The
leafleters were pretty stirred up and were acting very
boisterous, very demanding, very commanding, like
storm troopers. I couldn’t believe the actions that they
were going through and I hadn’t seen—I hadn’t been
around strike cases to any extent over the years, but
after the way we’ve treated all of these people and to
come down there knowing that this was our busy sea-
son and everything—if they had a leaflet like I guess
they say they do, passing out pamphlets and things like
that, it wouldn’t have had any—we wouldn’t have had
any problems. But to come in and scream and holler
and get over and keep people from getting on the car,
walking into the car and telling the people, ‘‘This car’s
not safe. Get off and go up the street to Pier 39 and
get on the cars.’’ They would walk right inside the car.
It was so unusual. I couldn’t believe that these people
had worked for me or were working for me in the past.
Q. These were things that you personally saw?
A. That is correct.
Q. I see. Now, did you do anything in response
when you saw and heard these people doing these
things on the July 4th weekend?
A. I called the police on at least two or three occa-
sions.
Q. I see.
A. We called and got security people. Mr. Ongisto
supplied us some people. And it didn’t do any good.
Q. Why do you say it didn’t do any good?
A. The—
Q. I take it you’re speaking of the security people?
A. The security people.
Q. I see. Why didn’t it do any good?
A. They said there are only certain things that they
could do and they couldn’t restrain them when they
were doing a lot of things. They could walk over close
to them and tell them to move on or something, but if
they wanted to push it too hard, why, they didn’t have
the authority to really—to slow them down or stop
them.
Q. How long did you have the security people out
there?
A. They were on and off there for quite awhile. I’m
not just sure how long it was.
Q. I see. Did you ever do anything else in response
when you saw these things taking place at Pier 41?
A. I believe some companies—somebody called us
and said they wanted to take some pictures, and I be-
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736 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 As indicated in my original decision, Robert Gridley had by this
time returned to directly oversee his own business interests in Louis-
ville, Kentucky. Gridley returned to San Francisco to again assist his
father around August 1.
lieve one or two companies came down there and took
some photos of the actions going on at least two occa-
sions that I know of.
Q. All right. Did you report the things that you saw
to the Littler Mendelson attorneys?
A. Yes, I did.
Q. And, now, they were still representing you and
the company during this period of time, weren’t they?
A. I’m not sure—I can’t recall whether Mendelson
was in on it on July weekend or not. I really can’t re-
call.
Q. I see. But the Littler Mendelson firm had been
representing you during the election that took place the
month before, isn’t that correct?
A. That’s correct. Now my memory’s—
Q. So the Littler Mendelson firm was still represent-
ing the company at that time?
A. That’s correct. That’s correct.
Steve Vogel, the regular roving ticket seller also alluded
to leafleters blocking customer access to the ticket car win-
dow but he gave no indication as to when the type of activity
he describes below occurred. His testimony on this point is
as follows:
Q. During this same period of time, did you have oc-
casion or did you ever observe any situations where the
individuals that were there giving forth this information
for the union would physically impede customers from
getting on to a cable car or approaching the ticket seller
or anything of that nature?
A. They—my end of the space that we had, about
four parking spaces altogether, I was free to roam
around, but I, by and large, would stay on my end of
the area. At the ticket car, the employees that would not
come down to me, there was several of them that
would not want to do battle with me, let’s say, and they
just wanted to stay away from that end because it was
more highly charged, by and large, and they would stay
on the other end. Kent Bishop and Fred McKenzie and
Michael Buckey stayed on the far end of the Wharf
area, and Dan Callahan and Will Segen and Sheila
Lambert would stand in front of the ticket car window
so that potential customers would have to fact [sic]
them first before even reaching the ticket window
which is just a mere two feet behind them. And for my
part, the people on my end would simply, as the tour-
ists would come up, they would try to put their back
to the tourists so that the tourists could not get any-
where else, and one of their members could stand on
the other side and make sure that their information was
being forwarded just as quickly as mine. And for a
tourist environment, tourists’ attention is very short, and
if they’re going to spend money, they do not want to
be hassled or pushed or forced to do anything of any
sort.
Henry Schaeffer testified that he observed leafleters board-
ing the cars to approach customers who had already pur-
chased tickets in order to press their boycott appeal. In some
instances, Schaeffer asserted, the customers left the car to
seek a refund of their ticket money. Schaeffer provided no
indication as to when these activities occurred.
Although he made no effort to imply that he had person-
ally observed the pier 41 activities over the July 4th week-
end, Robert Gridley testified that he received reports that the
leafleters obstructed access to the pier 41 ticket car over the
July 4th weekend from Hoa Van and that he instructed her
to keep the Company’s attorneys informed about these activi-
ties.7 Scott Rechtschaffen, the Company’s attorney at the
time, also testified that he received reports in the first week
of July about ‘‘leafleting, picketing, yelling at potential cus-
tomers and customers, various trespassing onto...the buses or
the coaches, people surrounding the ticket selling area, activ-
ity of that nature’’ at the Company’s pier 41 operation.
The Respondent obtained a state court injunction pertain-
ing to the boycotters activities in mid-October. The specific
terms of this order are unknown but it obviously related to
boycott activities in the immediate vicinity of the ticket car
and the tour cars. Thus, Michael Van noted that the leafleters
no longer stood at the ticket window after the injunction
issued. Steve Vogel alluded to a requirement that the
leafleters remain at a ‘‘safe’’ distance. Robert Sullivan
claims that the boycott tactics changed. He claims that after
the injunction issued, the leafleters approached customers in
the adjacent parking lots rather than in the immediate vicinity
of the cable cars.
B. Conclusions
Based primarily on the foregoing testimonial samples, I
have concluded that Respondent presented corroborated evi-
dence that some of the handbillers impeded customers’ ac-
cess to the ticket window at the ticket car by physically posi-
tioning themselves in front of the ticket window and that in
certain instances handbillers boarded the tour cars without
Respondent’s authorization to continue their boycott appeal
with passengers who already purchased tickets. I further find
that Respondent presented evidence that this type of activity
occurred over the July 4th weekend. I credit this evidence.
In this connection, Respondent presented a consistent strain
of evidence concerning the nature and the timing of this mis-
conduct which ran from Michael Van at the ticket window
on pier 41 to Scott Rechtschaffen’s office suite at the Littler,
Mendelson, Fastiff, and Tichy law firm and which I find
convincing.
The unusual setting of Respondent’s activities requires, in
my judgment, some reasonable accommodation between Re-
spondent’s right to engage in its business and the Union’s
right to present its appeal to the public. I fail to see how that
balance could be accomplished if customers do not have free
access to engage a business enterprise for a business trans-
action. Apparently, the state court thought likewise here. I
therefore find that in certain instances some of the
handbillers engaged in misconduct over the July 4th weekend
by impeding customer access to the pier 41 ticket window,
and by boarding the tour cars without authorization in an ef-
fort to persuade Respondent’s customers to abandon their de-
cision to take Respondent’s tours. This latter conduct in a
more normal retail setting would be functionally equivalent
to tolerating off-duty employees roaming throughout a retail
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737CABLE CAR CHARTERS
store imploring customers to return their purchases for a re-
fund.
Notwithstanding the protected nature of the boycott activi-
ties at pier 41 in general, I have concluded that certain other
conduct became so abusive as to lose its protection under the
Act. See generally NLRB v. City Disposal Systems, 465 U.S.
822, 837 (1984). Specifically, I credit Michael Van’s testi-
mony regarding the racial slurs and innuendo directed toward
him in the presence of customers. The remarks which Van
attributes to Randy Morrison were obviously made in an ef-
fort to dissuade customers from dealing with Van but those
remarks, in my judgment, cross over the line dividing spir-
ited consumer appeals from sleazy racial smears. The re-
marks which Van attributes to Segen are even worse as they
lack the slightest connection to the protected boycott activi-
ties and would be good cause for severe disciplinary action
in any ordinary workplace setting. In light of the other activi-
ties and the general atmosphere described over the July 4th
weekend, I further find that its reasonable to conclude that
this conduct most likely occurred at or about that same time.
Accordingly, I further find that this evidence reflects mis-
conduct on the part of handbillers Randy Morrison and Will
Segen in particular.
IV. RESPONDENT’S WRITTEN AND
PICTORIAL RECORDKEEPING
A. The Pertinent Evidence
No dispute exists about the written record Respondent kept
showing the names of the employees who handbilled at pier
41. Respondent entered those handwritten notes (or at least
a large portion of them) in the record. (R. Exh. 13.) That ex-
hibit indicates that the recording of names began on July 2.
Robert Sullivan testified that he directed this activity as well
as the photographing and videotaping at the suggestion of
Respondent’s legal counsel. There is no evidence one way or
the other as to whether these materials were eventually used
by Respondent when it actually sought the state court injunc-
tion.
The evidence about Respondent’s photographing and
videotaping activities is much more problematic. The evi-
dence on this critical point suffers from cloudy vagueness
where it exists at all. General Counsel questioned virtually
every witness about the photographing and videotaping but
failed to pinpoint the start of these activities in the vast ma-
jority of instances.
Kohle Gleffe and Fred McKenzie, two witnesses whose
testimony is cited by the General Counsel, both claim that
the pictorial recordkeeping began early in the boycott. Thus,
Gleffe testified that Lori Jones and Mike Gridley ‘‘came
down and took some still photos and some videotape’’ and
that this occurred ‘‘[i]n the early summer when we first start-
ed leafleting.’’ Although Ty Van’s written record (R. Exh.
13) reflects Gleffe’s name on very few occasions, she would
have been in a position to observe such activities while
working as a ticket seller in the pier 41 ticket car. Gleffe fur-
ther testified that Hoa Van and Patrick Nolan came to pier
41 ‘‘regularly every couple of weeks’’ to videotape and take
still photos. However, these activities noted by Gleffe un-
doubtedly occurred in September as Nolan was not employed
by Respondent until September 4.
McKenzie recalled that videotaping first occurred on July
24 or 25 when he first became involved in the pier 41 boy-
cott activity. Respondent’s Exhibit 13 reflects no handbillers
names on that date. In that exhibit, McKenzie’s name first
appears on July 14 and then July 16.
The earliest specific date comes from Randy Morrison’s
testimony where he asserts that the photographing and
videotaping began on July 5. I do not credit that claim as
Morrison’s account concerning his whereabouts and his ac-
tivities on July 5 is laced with inconsistencies. As explained
in footnote 23 of my initial decision, Morrison claimed dur-
ing the General Counsel’s case-in-chief that he was
handbilling at Sabella’s Restaurant when Ty Van appeared to
close the shuttle operation on July 5. However, when General
Counsel called him as a rebuttal witness, it became apparent
that Morrison, in fact, was not handbilling but instead was
working as the dispatcher at Sabella’s on July 5. Entirely
aside from the corroborating exhibits referred to in that foot-
note, a careful review of Respondent’s Exhibit 13—Ty Van’s
daily record of the persons who handbilled at pier 41—fails
to reflect that Morrison handbilled at pier 41 on July 5. For
these reasons, and as Morrison impressed me while testifying
as someone eager to paint Respondent in the worst possible
light rather than carefully reflecting facts about matters
which he saw and heard, I cannot rely on Morrison’s claim
that the picture taking and videotaping began as early as July
5, nor am I able to credit his more general claim that the
picture taking and videotaping occurred throughout the pier
41 handbilling activities.
Jonathan Palewicz, clearly the most active union supporter
among the employees at this time, testified that the
photographing and videotaping occurred ‘‘almost the entire
summer’’ but provided no information which would permit
a specific conclusion as to when it began. By implication,
however, Palewicz appears to agree that no photographing
and videotaping occurred at least in the first few days of the
boycott.
The most puzzling testimony of all on this point was pro-
vided by Michael Buckey who I regard generally as a very
reliable witness. His testimony provided the most studied ac-
count about the picture taking and videotaping, and reflects
the greatest detail combining the chronology and identity of
those who engaged in the pictorial record keeping activity.
As seen below, Buckey recollected that the videotaping first
commenced ‘‘after Labor Day weekend.’’ Thus he testified
as follows:
Q. Now, on those occasions when you were at Pier
41 leafleting, did you ever see any members of man-
agement or anyone else from the company?
A. Yes.
Q. On what occasions, if you recall?
A. Every time actually because there would always
be at least Ty down there—Ty Van—because he would
be dispatching.
Q. Doing what? Or I’m sorry. Other than those occa-
sion when you saw Ty Van at Pier 41 dispatching, did
you ever see either Ty Van or anyone else from the
company present while you were leafleting?
A. Yes.
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738 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Q. And what were these occasions and what did you
see these members of management or people from the
company doing?
A. One of the first times that I recall was the week-
end, Saturday specifically, after Labor Day weekend.
Karen Chiarenza, I believe we discussed her earlier
from the office, was down there and she was taking
pictures of us and—
Q. When you say ‘‘taking pictures,’’ what precisely
did you see her doing?
A. Well, at the beginning, I believe, she was using
a print camera, photo, snapshots. And then later there
was a video camera that was brought out. Her son ar-
rived two or three hours later, say roughly 2:00 o’clock.
Q. How did you know it was her son?
A. I have known Ken. He used to work as a ticket
seller for a while with us. He was out there.
Q. Was he working for the company at that time?
[Intervening Objection]
THE WITNESS: I don’t believe so, and not in my
knowledge, no.BY MR. TOM:
Q. And what is it you saw Karen Chiarenza and/or
her son doing?
A. Taking pictures, videotaping those of us that were
handing out leaflets. Every time we would talk to peo-
ple walking by, they would come up and take video
camera video shots of us.
. . .
Q. All right. Did you ever see anyone, other than
Karen Chiarenza and her son, photographing or
videotaping you while you were leafleting?
A. Yes, Phil Wright did one day and also Patrick
Nolan. I didn’t --
Q. Who is Patrick Nolan?
A. Patrick Nolan, I only knew him by his first name
at that point in time, Patrick. And I thought he had just
been hired to be like an overseer or whatever at Fisher-
man’s Wharf, down at Pier 41 at that point in time. I
wasn’t really sure who he was. He had not been there
when I was still working on the shuttle.
Q. All right. Did you later come to learn what his
position was with the company?
A. Well, he was obviously a driver. I saw him on
a car a couple times, driving a car. And it looked like
he was doing some of the dispatch functions at Pier 41,
routing people over where to buy tickets, tearing off
ticket stubs on the passengers that were on the car on
the tour, getting to leave and so on.
Q. Since then have you come to learn what his posi-
tion is?
A. Yeah, he’s one of the barn managers.
Q. I see. Is Hoa Van still with the company in that—
A. Yes, he answers
Q.—capacity, as well?
A. He answers to her, yes.
Q. I see.
A. That’s my understanding. I believe that he is
under her.
Q. All right. Do you recall if anyone else was ever
at Pier 41 from the company videotaping or taking pho-
tographs of you while you were leafleting?
A. Mr. Gridley was down there on occasion, but
not—he didn’t do the actual videotaping. He was down
there specifically the day that Phil Wright was
videotaping us. Hoa and Ty videotaped us, also. I be-
lieve that was on the following weekend after Karen
Chiarenza did.
Q. All right. How many occasions do you recall see-
ing Hoa Van and Ty Van out at Pier 41 videotaping
you?
A. Two days only. I think it was like the—it would
be like mid—mid-September to the 20th, somewhere in
there. The first weekend after Labor Day —I don’t
know what date that would be—it would be Karen
Chiarenza and Ken, her son. And then Ken continued
to videotape us the next day on Sunday. The following
weekend is when Mr. Gridley and Phil Wright were
down there. Phil Wright did some videotaping of us.
And then a month or so later—actually maybe only two
or three weeks—but within the next month Ty and Hoa
both were doing some videotaping and so was Patrick
Nolan.
Q. All right. How long were Hoa Van and Ty Van
videotaping you?
A. About two, two and a half hours. They came
down around noon or so. I mean, they weren’t actually
working at the Pier 41 facility. I remember seeing them.
The van pulled up right by the ticket car. They un-
loaded the camera, and were packing the film into it,
and videotaped us for a while and then the battery ran
out is what happened, quite frankly, so you know, we
were kidding them about, ‘‘Why did you stop filming?
You know, we were just getting into it.’’ He said, well,
he said something. I don’t know exactly what, but the
battery was dead.
Q. Where were Hoa Van and Ty Van in relation to
where you were leafleting?
A. I would actually go from different points. When
I was—when they were filming, I was down by the
ticket car, which would be the west end of the area that
we had marked out for tours.
Q. On any of those occasions when you saw Hoa
Van and Ty Van videotaping you, did you have occa-
sion to speak with either of them?
A. Yeah, I spoke to Ty off and on, nothing of any
consequence. Hoa wouldn’t hardly talk to me at all, just
absolutely stony silence, and I tried to ask her one
time—
Q. Do you remember when this was?
A. I think it was around the 20th, like the second
weekend or so after Labor Day, I believe it was.
Q. This is what month now?
A. September.
Q. Yes.
A. Late September, early October. She came around
the front of the ticket car, and that’s where I handing
out leaflets, and I said good morning or something and
she just walked right on by me. And I said, ‘‘Hoa, why
won’t you even talk to me?’’ And she just kept walking
and I started to walk towards her trying to say some-
thing and I realized she was talking to me, but she was
facing away from me. And she walked over to the tick-
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739CABLE CAR CHARTERS
8 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
et car and she was doing something with the clipboard,
which is what the dispatcher uses.
Undoubtedly, Buckey would have been in a position to ob-
serve such activities considerably before the time he pin-
points if they occurred on a regular basis. Thus, Ty Van’s
written record (R. Exh. 13) reflects Buckey’s name among
the pier 41 handbillers on 16 days from July 12 through the
Labor Day weekend. And Buckey’s repeated references to
September in his testimony strongly suggests that he had not
confused the Labor Day weekend with the Independence Day
weekend while testifying.
Others testified concerning the identity of Respondent’s
employees, supervisors and managers who took photographs
and videotaped at pier 41. However, these others made only
vague references, if any at all, to the timing of this activity.
B. Conclusions
Notwithstanding my regard for Michael Buckey as one of
the more reliable witnesses in this case, I find on the basis
of the testimony by Gleffe and McKenzie that at least some
photographing or videotaping occurred as early as July.
However, I am unable to conclude on the basis of their testi-
mony or any other evidence that any photographing or
videotaping occurred over the July 4th weekend. In this con-
nection, Jonathan Palewicz’s assertion that the photographing
and videotaping occurred almost the ‘‘almost the entire sum-
mer’’ strongly suggests that it did not occur over that first
weekend of the boycott. I further find no reliable evidence
supports the General Counsel’s assertion that the
photographing and videotaping commenced on July 2 when
the pier 41 boycott activities commenced.
Summary of Findings
Summarizing, I make the following findings as requested
by the Board: (1) Respondent maintained a written list of the
boycotters who appeared at pier 41 commencing on July 2;
(2) Misconduct on the part of the boycotters occurred over
the July 4th weekend; (3) Respondent commenced
photographing and videotaping the boycotters activities at
pier 41 at sometime in July but after the July 4th weekend;
and (4) Respondent knew of the misconduct of the boycott-
ers—especially the impeding of access to the ticket window
and the unauthorized boarding of the tour cars—before it or-
dered the photographing and videotaping. On the basis of
these findings, I conclude that it is unnecessary to revise my
earlier recommended Order as to the General Counsel’s sur-
veillance allegation in complaint paragraph 12.8
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